HARPRASAD Vs. BOARD OF REVENUE

JUDGEMENT

(1.) THIS is an application under article 226 of the Constitution of India for quashing an order made by the Board of Revenue on 16th July 1963 in the following circumstances.

(2.) ON 30th November 1959 the petitioner made an application to the Sub -Divisional Officer, Banda, for being allotted an abadi site in mouza Shahgarh of Banda tahsil for setting up a shop stating that the shop -structure which he had set up on another abadi site held by him under a registered lease was removed by him on the suggestion of the Sub -Divisional Officer that he would be allot ten another abddi site for the purpose. When the application was sent to the Tahsildar, Band for report, he recommended the allotment of a cortain site to the petitioner. On 15th February 1960 the Sub -Divisional Officer, accepting the recommendation of the Tahsildar, made an order for the allotment to the petitioner of the site indicated by the Tahsildar. On 4th March 1960 the Tahsildar issued a patta of the abadi site to the petitioner pursuant to the order of the Sub -Divisional Officer. It appears that on 15th September 1958 the opponent Rewaram had already applied for the allotment to him of the abadi site of which a grant was made to the petitioner. Apparently the Tahsildar and the Sub -Divisional Officer were not aware of this application or took no notice of it. Thereafter, Rewaam preferred an appeal before the Sub -Divisional Officer against the Tehsildar's order dated 4th March 1960 granting a patta to the petitioner The Sub -Divisional Officer held the appeal to be incompetent taking the view that the order passed by the Tahsildar on 4th March 1960 granting a patta to the petitioner was only a ministerial act done pursuant to the Sub -Divisional Officer's order and that the respondent should have filed an appeal against the order dated 15th February 1960 of the Sub -Divisional Officer. He also proceeded to express his opinion on the merits of the appeal and came to the conclusion that there was no ground for interfering, with the order of the Tahsildar.

(3.) HAVING heard learned counsel for the parties we have reached the conclusion that this application must be dismissed. Shri Sen, learned counsel appearing for the petitioner, was no doubt right in his submission that when the Board of Revenue agreed with the view taken by the Commissioner and the Sub -Divisional Officer that no appeal lay against the ministerial act of the Tahsildar granting a Patta to the petitioner, a revision petition for disturbing these decisions of the Sub -Divisional Officer and the Commissioner could not be entertained. But by the impugned order of the Board of Revenue the decision of the Sub -Divisional Officer and the Commissioner that the order dated 4th March 1960 of the Tahsildar was not open to appeal has not been disturbed. What the Board did was to strike down the order of the Sub -Divisional Officer under which the Tahsildar granted a Patta to the petitioner. This the Board did suo moto and not on the revision application filed by the opponent Rewaram.